From Common Law to Command Law
Tracing the difference between organic order and political control
Per Bylund points to a divide in how laws function: some exist to resolve disputes that naturally arise between people, while others create new conflicts by criminalizing or regulating peaceful behavior. Understanding this difference clarifies why some laws feel legitimate and protective, while others feel arbitrary and coercive.
Law for Conflict Resolution
Common law is built on precedent, custom, and the outcomes of real disputes. Its purpose is practical: when people come into conflict, it provides a mechanism for settlement. This could involve damages, restitution, or injunctions, but the aim is always to resolve a problem that has already happened. It is reactive by design. In this way, common law operates as a decentralized discovery process, gradually refining rules that align with social expectations of fairness and responsibility.
Typical cases involve clear harms: theft, assault, fraud, or damage to property. The role of the court is not to dictate how people live, but to provide a predictable framework that lets them interact freely while knowing that genuine violations will be adjudicated.
Example: If a neighbor’s livestock tramples your crops, common law provides recourse through compensation or restraint.
Key trait: It evolves from the bottom up, adapts to changing conditions, and tends to limit coercion by focusing only on harms that generate real disputes.
Law for Imposed Control
By contrast, legislation is often proactive. Instead of waiting for disputes to arise, legislators set rules that dictate behavior in advance. These rules may criminalize or restrict actions even when no one has been harmed. As a result, legislation often creates conflicts that would not otherwise exist. Citizens who would peacefully transact or act are placed in opposition to the state itself.
This type of law frequently emerges from political bargaining, lobbying, or ideological agendas. It often reflects the priorities of legislators rather than the natural expectations of ordinary people. Because of this, many legislative rules are experienced as arbitrary and coercive.
Example: A ban on raw milk sales criminalizes voluntary trade between farmer and buyer, even when both parties are satisfied and no harm has occurred.
Key trait: It is imposed from the top down, heavily influenced by political motives, and increases coercion by punishing peaceful conduct.
Overlap and Ambiguity
Not every law fits neatly into one category. Some rules attempt to prevent harms before they occur, such as public health measures or environmental regulations. These can sometimes reduce future disputes by addressing systemic risks early. For example, pollution controls limit emissions that would otherwise create conflicts over health and property. In theory, such rules are protective.
However, the ambiguity lies in execution. A preventative law can easily slip into overreach. When governments ban products, mandate licensing, or heavily regulate markets under the justification of “prevention,” the line between protecting rights and restricting agency becomes blurred. The challenge is determining whether the restriction truly prevents harm to others, or merely enforces conformity with a political agenda.
Coercion as the Measure
The key question is whether a law reduces or increases coercion, understood as the credible threat of harm used to force compliance.
Conflict-resolution law reduces coercion by protecting rights, offering restitution, and ensuring voluntary agreements are respected.
Control-based law increases coercion by outlawing or regulating actions that would otherwise be consensual and peaceful.
This distinction matters because coercion undermines agency. A society with laws that primarily resolve disputes enables individuals to act freely and take responsibility for their choices. A society dominated by laws that create new conflicts constrains individuals, treating them as subjects to be managed rather than agents to be respected.
Conclusion
The difference between law as resolution and law as imposed control is not merely academic. It shapes how citizens experience authority. When law emerges from real conflicts and resolves them fairly, it strengthens trust and preserves freedom. When law is used as a tool of control, it manufactures conflict, increases coercion, and undermines agency.
The legitimacy of any legal system depends on which type predominates. Laws that reduce coercion and protect voluntary interaction preserve genuine order. Laws that impose restrictions and criminalize harmless activity generate tension and erode respect for the rule of law. Ultimately, the value of a legal system lies not in how many statutes it enforces, but in whether it upholds the agency of those it governs.